MR. ZANG & ANOR v. EMMANUEL ITUMA & ORS
(2014)LCN/7216(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of May, 2014
CA/C/182/2011
RATIO:
APPEAL: ESSENCE OF A GROUND OF APPEAL
However, the law is that the primary object of a ground of appeal is to give reasonably adequate or sufficient information or notice of what the real or actual complaint is by an appellant against the decision of a lower court, to the Respondent, so as to enable him know and prepare for the hearing of an appeal against the decision. See Thor Ltd. v First City Bank (1997) 1 NWLR (479) 35; Aderounmu v. Olowu (2000) 4 NWLR (652) 253; Iwuoha v Nipost (2003) 8 NWLR (822) 308. Once the complaint in a ground of appeal is clear and contains a point of complaint against the decision of a lower court, the essence of the ground is achieved and the Respondent would easily know what the real grievance, attack, complaint or dissatisfaction with the decision is and so will not be surprised at what the appeal is about. In such a situation, with or without particulars, such a ground, with the current attitude of the appellate courts, is a proper ground that is considered competent in an appeal. See Atuyeye v Ashanu (1987) 1 NWLR (49) 267 at 282; Nsirim v Nsirim (1990) 3 NWLR (138) 285 at 297; Koya v UBA (1997) 1 NWLR (481) 251 at 265 – 6; Osasanya v Ajayi (2004) 5 SC (Pt. 1) 88 at 96. per MOHAMMED LAWAL GARBA, J.C.A.
TORT: WHETHER THERE MUST BE AN AGENCY RELATIONSHIP TO ESTABLISH VICARIOUS LIABILITY
The principle of vicarious liability is therefore based on the existence of the relationship of a master and servant or principal and agent between the person or party who actually or in fact, committed the tort and the person or party to, be held responsible or liable vicariously, for such tort other than that other person or party who committed the tort, commonly known in law, as the tortfeasor. Because the issue in the appeal deals with the employment of the tortfeasors in the case before the High Court, it is in respect of the relationship of employer and employee or master and servant. In both of these cases, for a claim against the employer or master, to succeed for acts or torts committed by the employee or servant, it must be pleaded and proved by evidence that:-
(a) There was, at the material time to the tort, the relationship of employer/employee, or master/servant between the tortfeasor and the party to be held liable for the tort. Gata v Panlola Nig. Ltd. (1998) 3 NWLR (543) 104.
(b) The tortfeasor was liable for the tort and
(c) That the tortfeasor acted in the course of employment of the employer or within the specific authority of the master/principal.
See Osondu v Soleh Boneh Ltd. (supra Iyare v. Bendel Feed & Flour Mill Ltd. (2008) 7 – 12 SC, 151, (08) 18 NWLR (1119) 300; Health Care Products Nig. Ltd. v Achaji Bezza (2003) FWLR (162) 1937; Royal Ade Nig. Ltd. v N.O. & C.M. Co. Ltd. (2004) ALL FWLR (213) 1776; Union Bank v. Ajagu (1990) 1 NWLR (126) 328; Obi v. Biwater Shellebear Nig. Ltd. (1997) 1 NWLR (484) 722. All the above are matters of facts to be pleaded and established jointly, by evidence and failure to prove any one of them would result in the failure of the claim for vicarious liability. per MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
1. MR. ZANG
2. CCECC NIGERIA LIMITED – Appellant(s)
AND
1. EMMANUEL ITUMA
2. ANOZIE & BROTHERS CO. NIGERIA LIMITED
3. DANIEL NSIANYA – Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Cross River State, Akamkpa, delivered on the 30/3/2011 in suit No. HK/21/2007, by which judgment was entered in favour of the Respondents as counter-claimants, against the Appellants. The 2nd Appellant had initially sued the Respondents and Moses Anyoku before the High Court for declaration and damages to its vehicle, said to have been caused by the 1st and 3rd Respondents’ recklessness. In their statement of defence to the action, the Respondents made and included a counter-claim against the Appellants and Etim Jon Effiong and Sgt. Richard Agogo.
At the trial, the Respondents called evidence to prove their counter-claim and the Appellants rested their defence to the counterclaim, on the case presented by the Respondents. so the Appellants did not call evidence on their defence to the counter-claim and after a consideration of the pleadings and evidence adduced by the Respondents in support of their counter-claim, the aforementioned judgment was entered in their favour. Being dissatisfied with the decision by the High Court, this appeal was brought against it by the Appellants vide a notice of appeal dated and filed on the 13/4/2011, containing three (3) grounds of appeal. An amended notice of appeal of four (4) grounds was filed on the 17/6/2013 and in the Appellants, brief filed on the 17/6/2013, but deemed on the 24/3/2014; the date of the oral hearing of the appeal, two (2) issues were raised for decision in the appeal. They are:-
“4.01. Whether the failure to serve the 1st to 3rd defendants (One of who is now the 1st Appellant) with the counter-claim by which the counter-claimants, now Respondents commenced action against the 1st to 3rd defendants did not amount to a denial of 1st to 3rd defendants’ right to fair hearing thereby vitiating the entire proceedings and the judgment thereof. (Ground 1)
4.02. Whether the judgment of the lower court was not perverse having regard to the facts and circumstances of the counter-claim. (Grounds 2, 3 and 4).”
In the Respondents’ brief filed on the 6/11/2013 deemed on the 24/3/14, preliminary objections to the record of the appeal and the inclusion of Etim Jon Effiong and Sgt. Richard Agogo in the Appellants’ submissions in the appeal, were argued. A further objection was raised on Appellants’ ground 1. A notice of the preliminary objection was filed on the same date with the Respondents’ brief. Two (2) issues were set out for determination in the brief as follows:-
“1. Whether, on the totality of the facts and circumstances of these proceedings at the trial court, the appellants can be heard to complain of self imposition of representation by Emmanuel Okang, Esq., none service and the denial of fair hearing? (formulated from Ground 1).
2. Whether, the Respondents’ evidence on record that was altogether un-denied and unchallenged, is not abundant or sufficient enough to entitle them to the judgment entered against the appellants? (formulated from Ground 2).”
An Appellants’ Reply brief, filed on the date of the hearing of the appeal, was deemed by the court before the hearing. All the briefs were adopted and relied on by the learned counsel for the parties at the hearing, each urging us to uphold the respective submissions therein.
As usual, I would, briefly, consider the preliminary objection raised and argued in the Respondents’ brief.
The first ground of the objection was that the record of the appeal was transmitted to the court outside the period prescribed by the Rules of the court and that leave of the court was not sought for and obtained by the Appellants. It was conceded in the Appellants’ Reply brief that the record was transmitted outside the limited by the Rules of the court, due to the fault of counsel, the sin of whom the courts do not visit on parties.
In the case of Nneji v. Chukwu (1988) 3 NWLR (81) 184, in dealing with compliance with rules of court, the Supreme Court had stated that:-
“Albeit rules of court are meant to be complied with, but the principal object of court is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with those rights. The Rules of court are made to help the court in its primary duty and objective, namely, to do justice to the parties by deciding on the merits of their case. It will therefore be undesirable to give effect to rules which will merely enable one party to score, not victory on the merit, but a technical knock-out at the expense of a hearing on the merits.”
See also University of Lagos v. Aigoro (1985) 1 NWLR 143 at 154; Alsthom v. Saraki (2000) FWLR (28) 2267; Afribank v. Owoseni (1995) 2 NWLR (375) 110; F.S.B. Int. v. Imano (2000) 7 SCNJ 65 at 78.
Undoubtedly, the failure to compile and transmit the record of the appeal within the period of time prescribed by the provisions of Order 8, Rule 4 of the Court of Appeal Rules, 2011 and to apply to regularize the record of appeal sent to the court outside the said period, was that of the counsel. Although the failure on the part of counsel clearly shows lack of diligence, the learned counsel for the Respondents did not even suggest that the fact that the record of the appeal was transmitted to the court outside the period stipulated in the Rules had occasioned any prejudice to the case of the Respondents in the appeal. In the premises of the law stated by the apex court in above case, a court is entitled to condone non-compliance with some of its rules, the breach of which does not cause or occasion any prejudice to the parties in the case before it, in order to do justice on the merit of the case presented by them. For this court, Order 20, Rule 3(1) & (2) of the Court of Appeal Rules, 2011, provides that:-
“3-(1) “The court may, in an exceptional circumstance, and where it considers it in the interest of justice so to do, waive compliance by the parties with these Rules or any part thereof.”
Pursuant to these provisions the record of the appeal received in the court on the 4/8/2011 is deemed to have been properly transmitted to the court, compliance with the provisions of Order 8 Rule 4, being waived hereby.
Apart from the above, the ground of objection only seeks to stall the expeditions determination of the appeal because even if upheld and the record of the appeal was struck out and the appeal dismissed on that basis alone, the Appellant would be entitled to subsequently apply for the appeal to be relisted on the cause list and the court would have the power to grant it, under Order 8, Rule 20 of the Rules. The provisions of the Order are thus:
“Order 8 rule 20- An Appellant whose appeal has been dismissed under this Rule may apply by notice of motion that his or the appeal be restored and any such application may be made to the court, who may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.”
For the above reasons, the ground of the objection fails.
The second ground of the objection was that the Appellants’ brief has made submissions for persons who are not parties to the appeal.
Learned counsel for the Respondent had submitted that Etim J. Effiong and Sgt. Richard Agogo are not parties to the appeal but that a case was made for them in the Appellants’ brief under Issue 1 and that it was incompetent to do so. That the submissions for them are in-separable from those made for the Appellants under the issue and we are urged to strike the submissions out.
For the Appellants, it was submitted that ground 1 and Issue complaint about the ratio decidendi of High Court’s decision that the 4th Defendant to the counter-claim, was vicariously liable for the acts of the 1st – 3rd Defendants, the people who are said not to be parties to the appeal. Submissions on who is the employer of E.J. Effiong and Sgt. R. Agogo, both policemen, and who should have been joined in the counter-claim of the Respondents were made and cases cited in support thereof. These submissions are of no moment to the ground of objection because whoever was/is the employer of the people would have no material bearing as to whether, as defendants to the counter claim before the High Court and against whom judgment was entered therein, they are parties to the present appeal. The question as to whether a person/s is/are parties to an appeal brought to the court is to be determined by the initiating process of the appeal by which, under the combined provisions of Section 24(1) of the Court of Appeal Act, and Order 7, Rule 11 of the Court of Appeal Rules 2011, is the notice of appeal. By the proforma form of a notice of appeal set out in the Rules, the names of the parties are required to be set out on the face of the notice of appeal and specific addresses for service provided for such parties.
The original notice of appeal filed by the Appellants on the 13/4/2011 against the decision of the High Court, is at pages 97 – 98 of the record of appeal. The parties set out on the notice of appeal are Mr. Zhang and CCECC Nig. Ltd. as Appellants and Emmanuel Ituma, Anozie & Brothers Co. Nig. Ltd. and Daniel Nsianja – as Respondents. The same names were indicated and repeated on the amended notice of appeal filed on the 17/6/2013.
Clearly, E.J. Effiong and Sgt. Richard Agogo are not parties in the above notice of appeal since their names were not indicated or included on the list of the parties set out therein.
For not being parties to the appeal, although where or if necessary, reference can properly be made to them in the course of submissions made on the issues arising for determination in the appeal, a case cannot be presented or made on their behalf in attacking the judgment or decision appealed against. For them to be entitled to a hearing and for a case to be made or presented on their behalf against the decision or judgment of the High court, they had to be parties who had properly brought their grievance against it in the manner prescribed and as required by the law. They have not done so in the present appeal and so are strangers to the appeal. In fact, they have not been indicated to be directly affected by the appeal on the two (2) notices of appeal filed by the Appellants. No complaint can therefore be made for them in the appeal against the decision by the High Court since they are not parties to the appeal and are not shown to be directly affected by the appeal. Any complaint so made, in whatever guise, would be of no moment and so in competent in the appeal. For that reason, for being incompetent, arguments in the Appellants’ brief made for and on behalf of E. J. Effiong and Sgt. Richard Agogo would be discountenanced in the determination of the appeal, as a consequence of the ground of objection, succeeding and being upheld.
The third and last ground of objection is that ground 1 is discordant with and uncomplimentary of its particulars. It was submitted that the particulars of the ground did not set out the matters of the error complained of in the ground but dealt with matters of want of notice, service of the counter-claim, fair hearing and alteration of parties, which are said to be independent complaints. It was submitted that the law is that particulars of a ground cannot be used to expand the scope and ambit of the principal complaint in the ground and must not be independent complaints from the ground. Further, that particulars of a ground of appeal must compliment the complaint in the ground and not speak different language outside the contemplation of the ground, relying on Anammso v First Marina Trust Ltd. (2000) 1 NWLR (640) 309 at 317 and Kalu v. Onwuegbu (2008) ALL FWLR (435) 1713 at 1726, inter alia. We are urged to uphold the ground of objection.
On his part, learned counsel for the Appellant had set out ground 1 and said the cases cited above are disguisable from the appeal. That counsel has complete control and discretion to conduct the appeal in the light of what happened at the trial court. That the particulars compliment the ground since they deal with the counter-claim which is the main complaint in the ground. We are urged to over-rule the ground of objection.
As a foundation for consideration of the ground of objection, I would refer to the provisions of Order 6, Rule 2, of the Court of Appeal Rules, 2011 which provide that:-
“Order 6 rule 2-
(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall accompanied by a sufficient number of copies for service on all such parties, and it shall also have endorsed on it an address for service.
(2) Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the Appellants intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
(4) The notice of appeal shall be signed by the Appellant or his Legal Representative
3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.”
The community requirement in the above provisions is that for a ground of an appeal alleging misdirection or error of law, the particulars and nature of the error shall be clearly and concisely set out or stated under distinct heads without any argument or narrative. For a ground of appeal to comply with the provisions, it is required to be clear, concise and precise on the nature of the error complained of, without narration or arguments. The practice by counsel of merely quoting or repeating a passage of a decision or judgment of a lower court, as a ground of appeal, which has become common now, clearly ignores and does not comply with the above provisions of the Rules of the court. Such a quotation or repetition of a passage or portion of a judgment does not present the nature of the error or misdirection of law clearly and precisely, but only a narration of the conclusion, finding or decision by the lower court. The quotation or petition of a passage or portion of a judgment or decision of a lower court as a ground of appeal, makes it general in terms and vague and in breach of the provisions above. See Alade v Ogundokim (1992) 5 NWLR (239) 42 at 52; Amadijeogu v. Ononaku (1988) 2 NWLR (78) 614; Anyaoke v Adi (1986) 3 NWLR (31) 731.
The Appellants’ ground 1, is merely a quotation or repetition of a finding by the High Court that the 4th defendant was vicariously liable for the acts of the 1st to 3rd Defendants and so does not comply with the requirements of the above provisions of the Rules of court. To make it worse, the particulars set out under the ground are mainly argumentative, particularly No. i, ii, iv, v and vi. Both the ground and particulars do not comply with the requirements of the Rules of court and are therefore liable to be struck out as improper and incompetent grounds of appeal.
However, the law is that the primary object of a ground of appeal is to give reasonably adequate or sufficient information or notice of what the real or actual complaint is by an appellant against the decision of a lower court, to the Respondent, so as to enable him know and prepare for the hearing of an appeal against the decision. See Thor Ltd. v First City Bank (1997) 1 NWLR (479) 35; Aderounmu v. Olowu (2000) 4 NWLR (652) 253; Iwuoha v Nipost (2003) 8 NWLR (822) 308. Once the complaint in a ground of appeal is clear and contains a point of complaint against the decision of a lower court, the essence of the ground is achieved and the Respondent would easily know what the real grievance, attack, complaint or dissatisfaction with the decision is and so will not be surprised at what the appeal is about. In such a situation, with or without particulars, such a ground, with the current attitude of the appellate courts, is a proper ground that is considered competent in an appeal. See Atuyeye v Ashanu (1987) 1 NWLR (49) 267 at 282; Nsirim v Nsirim (1990) 3 NWLR (138) 285 at 297; Koya v UBA (1997) 1 NWLR (481) 251 at 265 – 6; Osasanya v Ajayi (2004) 5 SC (Pt. 1) 88 at 96.
The Appellant’s ground 1, I agree with the learned counsel for the Respondents, is not complemented by the argumentative particulars, which are really, separate and independent complaints against the decision by the High Court in the case. But, the complaint in the ground, is clearly that the High Court erred in law in holding the 4th Defendant vicariously liable for the acts of the 1st to 3rd defendants. The learned counsel for the Respondents did not give any reasonable impression in his submissions that the Appellants, or he, did not understand or know what the real complaint is in the ground, without the particulars. He is however right that, particulars of a ground are to complement and ossify the ground and cannot be used or employed to expand the ambit and scope of the ground. See Globe Fishing v. Coker (1990) 7 NWLR (162) 265 at 300; Honika Sawmill v Hoff (1994) 2 NWLR (326) 252; Briggs. v Okoye (2005) 4 SC 89 at 108.
No matter how much I would be prepared to save the ground 1 of the Appellant, standing alone as a clear complaint against the decision by the High Court that the 4th Defendant was vicariously liable for the acts of the 1st to 3rd defendants, the Issue 1 said or indicated by the learned counsel for the Appellants to have been distilled from the ground, is predicated on the argumentative and independent complaints in the particulars. The entire submissions on the issue are also based on the complaints in the particulars and not on the ground, standing alone, which I am prepared to save. In the circumstances, since the arguments or submissions are not founded on the ground, both the issue 1 and the submissions thereon, are not competent in the appeal. The law is now firmly settled that for an issue in an appeal to be competent for consideration and determination in an appeal, it must enure or derive from at least a ground of the appeal. Where it is not so derivable from the grounds of an appeal, the issue becomes irrelevant and incompetent in the appeal, liable to be stuck out. See African Petroleum Ltd. v Owodunni (1991) 8 NWLR (210) 391; Mark v. Eke (2004) 1 SC (Pt. 1); Ekemuo v Duru (2006) ALL FWLR (304) 504. In addition, an issue for determination in an appeal is required to be based on the complaint in the ground of appeal and not on the particulars as the particulars cannot be argued as separate grounds of appeal. See Oghonnaya v Adopalm Nig. Ltd. (1983) 6 SCNJ (Pt. 1) 22; Stirling Civil Eng. Nig. Ltd. v Yahaya (2005) 4 SC 124 at 136. These requirements of the law are beyond the realm of technicality as appeals have to comply with the stipulations of the law in respect of both grounds and issues arising from them for decision by the courts. Grounds and issues in appeals cannot be and are not at large or left to the whims of parties or their counsel.
For reason of failure to be raised from and argued on the basis of ground 1 of the appeal, the Appellants’ Issue 1 is incompetent. The ground of the Respondents’ counsel’s objection to the Issue and submissions thereon, has merit and succeeds. In consequence, the said issue and the submissions thereon as contained in the Appellants’ briefs, are hereby struck out for being incompetent. With the Appellants’ Issue 1 out of the appeal, their Issue 2 now stands alone for decision in the appeal.
The Issue 2 is, again, whether the judgment of the lower court was not perverse in having regard to the facts and circumstances of the counter-claim.
The submission by the learned counsel for the Appellants on the issue are that the High Court failed to consider that the 1st and 2nd Defendants to the counter-claim were police officers under the Commissioner of Police, their disclosed principal, who ought to have been joined in the counter claim. Relying on Abah v Jabusco Nig. Ltd. (2008) 3 NWLR (1075) 526 and Oyakhire (1986) 1 NWLR (19) 735, he said it is either the Inspector General of Police, Commissioner of Police, or the Police Service Commission that should be sued for tortuous acts committed by police officers in the course of their duty. That the High Court erred in relying on a foreign authority which should not have formed the basis of its judgment for being merely persuasive and that the holding of the 4th Defendant vicariously liable for the tortuous acts of policemen who are not his servants, was perverse. It was the contention of counsel that the finding had occasion miscarriage of justice on the part of the 4th Defendant. Furthermore, that the High Court entered judgment against the Appellants without properly evaluating the evidence before it pointing out that DW1 had said he made N50,000.00 a day from his vehicle and that he spent N12,000.00 on medical treatment. It was submission of counsel that the award of N1,500,000.00 as damages for illegal distress and trespass to properly and N500,000.00 as damages for assault and battery, cannot be supported by the evidence on record. He also said the sum of N4,800,000.00 against the Appellants lacked any basis in law, citing inter alia; Ladunni v Wema Bank Ltd. (supra) on when a judgment or decision by a court can be said to be perverse. In conclusion, we are urged to allow the appeal and “strike out the suit”.
On his part, the learned counsel for the Respondents had pointed out that the parties in their pleadings, were in agreement that though the 1st and 2nd Defendants were police officers, they were at the time material to the counter-claim, attached to and working for the 2nd Appellant. He referred to paragraph 8 of the statement of claim and paragraphs 11, 12, 13, 21 and 22 of the statement of defence and counter claim and argued that even though the 1st and 2nd defendants were principally employed by the Nigeria Police, at the time material to the case, they were in the service of the 2nd Appellant and so were servants of two masters. In further argument, he said, relying on Salmond on the Law of Torts by Heuston, 17th Edition, page 402 a paragraph 175, the liability for the tortuous acts of the 1st and 2nd Defendants in the course of their hired services attach to and is borne by the master in whose immediate service they were when the acts were committed. It was the submission of counsel that Respondents had led evidence at the High Court to show that the 1st and 2nd Defendants’ tortuous acts were at the instance, directive and orders of the 1st Appellant who personified the 2nd Appellant, and so should be responsible for the acts. That the 2nd Appellant was said to have been rightly held liable in the counter claim.
On the probative value of the Respondents’ evidence before the High Court, learned counsel submitted that apart from the bare assertion in the Appellants’ brief that the High Court erred when it entered judgment without properly evaluating the evidence, the Appellants did not show how the High Court’s evaluation of evidence, was wrong. It was pointed out that the Appellants did not call evidence in defence of the counter-claim, but rested their case on the evidence adduced by the Respondents and they are deemed to have abandoned their pleadings and admitted the case of the Respondents. Among others, the cases of Magousson v. Koiki (1993) 12 SCNJ 114 at 124; Eseigbe v. Agbilor (1993) 12 SCNJ, 82 at 91 and Nnanna v. Onyenakuchi (2000) FWLR (20) 607 at 619, were cited on the principles of law stated by counsel.
Learned counsel then said the burden of proof on the Respondents in the counter-claim was on the balance of probabilities in respect of the torts of trespass to the person, to property and false imprisonment, which according to him, was discharged by their credible and cogent evidence adduced before the High Court. That the evidence was admitted by the Appellants and so the Respondents’ were entitled to and rightly, given judgment by the High Court, on minimum proof, reliance being placed on Elf v Sillo (1994) 19 LRCN, 153 (02) 175 and SPDC v Okonedo (2007) ALL FWLR (368) 1104 at 1134 – 5, inter alia. We are urged to hold that the Respondents’ evidence abundantly and sufficiently discharged the burden of proof to entitle them to the judgment entered in their favour, and to dismiss the appeal.
In the Appellants’ Reply, it was submitted that police officers attached to organizations are not the servants of such organizations and the case of Anike v SPDC (2012) ALL FWLR (638) 975 was relied on for the submission.
From the submissions by the learned counsel for the Appellants on the issue, it appears that the primary complaint under the issue is that the 2nd Appellant cannot be held liable in law, for the torts committed by police officers because though attached to the company, they are not its servants, for the purpose of liability for acts committed while on attachment or assignment with the company.
I would start a consideration of the point and issue by saying that the concept or doctrine of vicarious liability in civil actions of torts has its foundation in the common law position that a master is liable for any wrong, even if it is a criminal offence or a tortuous act, committed by his servant while acting in the course of his employment and that a principal is also to be responsible for acts done by his agent in the discharge of the authority of the agency. It evolved from the principle enunciated in the case of Hern v Nicholas (C. 1700) 1 Salk, 289, by Sir John Holt, CJ; when he said:-
“Seeing somebody must be a loser by this deceit, it is more reason that he, that employs and puts and trust and confidence in the deceiver, should be a loser than a stranger.”
See Ifeanyi Chukwu (Osondu). Ltd. v. Soleh Boneh Ltd. (2000) 3 SC, 42, (00) ALL NLR, 604, (00) 5 NWLR 9656) 322.
The principle of vicarious liability is therefore based on the existence of the relationship of a master and servant or principal and agent between the person or party who actually or in fact, committed the tort and the person or party to, be held responsible or liable vicariously, for such tort other than that other person or party who committed the tort, commonly known in law, as the tortfeasor. Because the issue in the appeal deals with the employment of the tortfeasors in the case before the High Court, it is in respect of the relationship of employer and employee or master and servant. In both of these cases, for a claim against the employer or master, to succeed for acts or torts committed by the employee or servant, it must be pleaded and proved by evidence that:-
(a) There was, at the material time to the tort, the relationship of employer/employee, or master/servant between the tortfeasor and the party to be held liable for the tort. Gata v Panlola Nig. Ltd. (1998) 3 NWLR (543) 104.
(b) The tortfeasor was liable for the tort and
(c) That the tortfeasor acted in the course of employment of the employer or within the specific authority of the master/principal.
See Osondu v Soleh Boneh Ltd. (supra Iyare v. Bendel Feed & Flour Mill Ltd. (2008) 7 – 12 SC, 151, (08) 18 NWLR (1119) 300; Health Care Products Nig. Ltd. v Achaji Bezza (2003) FWLR (162) 1937; Royal Ade Nig. Ltd. v N.O. & C.M. Co. Ltd. (2004) ALL FWLR (213) 1776; Union Bank v. Ajagu (1990) 1 NWLR (126) 328; Obi v. Biwater Shellebear Nig. Ltd. (1997) 1 NWLR (484) 722. All the above are matters of facts to be pleaded and established jointly, by evidence and failure to prove any one of them would result in the failure of the claim for vicarious liability.
The bone of contention by the learned counsel for the Appellants on the issue is that the 1st and 2nd Defendants in the suit before the High Court being police officers, are employees of the Nigeria Police and so the police and nor the 2nd Appellant (who was the 4th defendant before the High Court) was vicariously liable for the tortuous acts. He relied on the cases of Anike v. SPDC Nig. Ltd.; Abah v. Jabusco Nig. Ltd. and Oyakhire v. Obaseki (all supra) as well as the Police Act.
I have read the cases relied on by the learned counsel for the Appellants and observed that in all of them, the issue was on the liability for the tortuous acts done or committed by police officers in the ordinary course of discharging their police duties under the direct control of the police authority. The cases involved acts, actions or steps taken by the police officers in the course of investigations of complaints of or allegations of commission of crimes or in the course of their assigned duties as police officers under the command and direct control of the police authority. It was in those situations or circumstances that the court made the statements in the case of Oyakhire v. Obaseki (supra) that:-
“A plaintiff has a choice to sue either the Commissioner of Police in his official designation or the Inspector General of Police or the Police Service Commission, as the disclosed principal jointly and severally with a Police Officer in respect of a tortuous act done in the course of that Officers duty.”
It was this statement which was referred to and quoted by the court in the case of Abah v Jabusco (supra) as support for the position above. The latest case of Anike v SPDC (supra) also made reference and applied the said principle of law enunciated earlier in the Oyakhire v Obaseki case. The facts in the case before the High Court are different in the very material sense that the 1st and 2nd Defendants in the case, were police officers who were officially assigned and attached to the 4th defendant, a private company and though not their employer, it had direct control on them at the time material to the tortuous actions complained of against them and other defendants in the case, by the Respondents. Put another way, at the time they committed the tortuous acts against the Respondents, the 1st and 2nd Defendants, though police officers in the general employment and control of the police authority, were under the direct and specific control of the 4th defendant to whom they were assigned and attached to provide the special services and perform duties required by the company. For all reasonable and practical purposes, their assignment and attachment to the 4th Defendants, necessarily, subjected them to the direct authority and control of the company while it lasted. In the legal sense and purpose, the said police officers were made servants to the company, who was their master, during their attachment to it since they no longer took direct command from the police authority in the discharge of their ordinary daily duties to the company. As the master in direct control and direction of the daily duties of 1st and 2nd Defendants, the 4th Defendant carried along, the corresponding responsibility for acts done or committed by them in the discharge of the daily duties directed by it. This was the principle of law stated by the learned author of Salmond on the Law of Torts referred to by the learned counsel for the Respondents and applied by the High Court in finding the 4th Defendant (now 2nd Appellant) vicariously liable for the tortuous acts of the policemen who were under its direct control and direction at the material time. The learned author had stated, at page 462 of the 17th Edition of the Book, relying on the English case of v Pointer (1826) 5 B & C, 547, that:-
“….When a servant has thus two masters, the responsibility for a tort committed by him lies exclusively upon the master for whom he was working when he did the act complained of.”
In the circumstances of the Appellants’ case, the High Court was right to have applied the above principle in finding the 2nd Appellant liable for acts committed by the police officers under the immediate and direct control and direction of the 2nd Appellant. The cases cited and relied on by the learned counsel for the Appellants in respect of liability of the Commissioner of Police, Inspector General or the Police Service Commission for acts committed by policemen or officers in the ordinary and usual performance of their police duties under the control and command of the police authority, do not avail the Appellants here.
The learned counsel for the Appellants had also under the Issue, alleged that the High Court did not properly evaluate the evidence before it. As rightly pointed out by the learned counsel for the Respondents, nowhere in the Appellants’ brief was the evaluation of the evidence adduced by the Respondents shown to be improper or a wrong assessment. It must be noted that it is not sufficient for learned counsel to merely make an allegation of an error of law, which the evaluation of evidence by a trial court is, without a clear demonstration of the error in the evaluation of evidence. To support an alleged improper evaluation, the evidence adduced before the trial court and its evaluation must be set out to enable this court to clearly see how the evaluation was carried out by that court. The learned counsel for the Appellants has not done so in this appeal but we have observed that the Appellants not only abandoned their pleadings in respect of the Respondents’ counter claim, by failure to call evidence in the case, but specifically rested their case and relied on the evidence adduced by the Respondents. Therefore the only evidence before the High Court in respect of the Respondent’ counter-claim, was that adduced by the Respondents, which remained substantially unchallenged and un-contradicted. In such a situation, the law is that minimum proof or evidence was required for the counter claims of the Respondents to succeed and be sustained by the court. In the case of Adewuyi v Odukwe (2005) 7 SC (Pt. II) 1 at 13, the Supreme Court had put the position of the law thus:-
“It is now settled law that where there is no evidence to put on one side of the imaginary scale in a civil case, minimum evidence on the other side satisfies the requirement of proof.”
See also Nwabuoku v. Offi (1961) 2 SCNLR 232; Buraimoh v Bamgbose (1981) 6 SC (Pt. 1), (89) 3 NWLR (109) 359; Baba v N.C.A.T.C. (1991) 5 NWLR (192) 388; Ezennah v Atta (2004) 2 SC (Pt. II) 75; Larmie v D.P.M.S. Ltd. (2005) 12 SC (Pt. 1) 93.
I have perused the judgment of the High Court and unable to see or find where it can properly be accused of improper evaluation of the only unchallenged evidence placed by it on the one side of the imaginary scale of justice in the finding in favour of the Respondents. The High Court had taken into consideration, all the recognised factors in evaluation of evidence by a trial court in the determination of dispute between the parties that come before it. Its assessment of the evidence cannot be said to be and is not improper in the circumstance of the Appellants’ case. The unchallenged evidence adduced by the Respondents was credible and sufficient in law to support their counter claim and the High Court properly and correctly evaluated it before arriving at the decision appeal against. The law is that in such a situation, this court has no business in interfering with such evaluation simply because it might have arrived at a different decision on some or all of the facts in the case. See Omoregie v Iduagiemwanye (1985) 2 NWLR (5) 41; Ugo v. Obiekwe (1989) 1 NWLR (99) 566; Onifade v Olayiwola (1990) 7 NWLR (161) 130.
The learned counsel for the Appellants had also attacked the award of damages by the High Court by making the blanket submission without more, that the award of N1.5 million as damages for illegal distress, trespass to property, assault and battery cannot be supported by the evidence on record, perverse and lacked basis in law.
It cannot be seriously disputed by the Appellants that the evidence adduced by the Respondents, both oral and documentary, which was also their evidence because they rested their case (defence) on the said evidence, clearly proved the claims for distress, trespass to properties (lorries and goods), assault and battery, made by the Respondents. Each of these heads of claim attracts damages and the High Court is empowered to assess such damages, taking into account the relevant factors or materials, and make award which the facts and circumstances of the case warranted.
The oral evidence of the Respondents taken along with the Exhibits A, B, C, D, E & F, undoubtedly proved all the heads of the Respondents’ counter claim and the High Court’s assessment of the amount of damages on each of them is amply supported and justified by such evidence.
Since the Appellants here did not show that in the awards of damages the High Court either took into account irrelevant factors or matters or that it omitted relevant ones such as would, in the peculiar facts, circumstances and evidence before it, make the assessment and awards erroneous in law, there is no justification for the court to interfere with the awards of damages by that court. See International Messengers Nig. Ltd. v Pegofor Ind. Ltd. (2005) 5 SC (Pt. II) 38; Okoko v Dakolo (2006) ALL FWLR (336) 201; Newbreed Org. Ltd. v Erhomosele (2006) ALL FWLR (307) 1076; Oduwole v West (2010) 10 NWLR (1203) 598.
In the result, I find no merit in the arguments of the Appellants on the Issue 2 and so it is resolved against them.
In the final result, this appeal lacks merit and is dismissed by me. Costs assessed at N50,000.00 are awarded in favour of the Respondents and to be paid by the Appellants.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA. I agree that the Record of Appeal was compiled and transmitted out of time as provided in the court of Appeal Rules. However, the Record of Appeal is already filed. The failure to transmit within the time limit is a procedural error and therefore not fatal to this appeal. My learned brother has followed, the holdings of the justices of the apex court in the case of Nneji vs. Chukwu (supra). The whole idea being that, court must as a matter of necessity do substantial justice to the parties. It would not allow a party to score a cheap technical knock- out at the expense of hearing the appeal on the merits.
For this and the robust reasoning and conclusion in the main appeal. I also dismiss this appeal. I abide by all the orders contained in the lead judgment as mine including that as to costs.
ONYEKACHI A. OTISI, J.C.A.: I had the privilege of reading, in draft, the lead Judgment of my learned Brother, Mohammed Lawal Garba JCA in this appeal. The issues raised in this appeal have been completely addressed by my learned brother. I am in agreement with his reasoning and conclusion; dismissing the appeal.
I abide by the Orders made in the lead Judgment, including the order as to costs.
Appearances
E. M. Ekpenyong For Appellant
AND
K. Ejukwa with U.E. Usang For Respondent
